Lessons for social workers from Luke Davey’s Care Act appeal

Care Act trainer Pete Feldon reflects on the court's ruling that a social worker's views were genuinely held, despite contradictions between statements

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Photo: Gary Brigden

By Pete Feldon

Luke Davey’s legal challenge to cuts to his personal budget is the first time that the Court of Appeal has ruled on the Care Act 2014 and the earlier judicial review was also the first of its kind, so it is important that social workers reflect on the implications of these rulings and learn how to avoid judicial reviews in similar circumstances.

In dismissing his appeal, the court ruled that the views expressed by the social worker in witness statements were genuinely held, and also that it was right that the court should take them into account even though they were not in accord with the case records. This means that where a case goes to judicial review, clarifications set out in witness statements can be accepted where they significantly add to what is set out in the case records – even if they might be contradictory.

Luke Davey was against some of the decisions of a judicial review in March. He was seeking to overturn the reduction to his personal budget made by Oxfordshire council, which was previously part-funded by the Independent Living Fund. The council reduced Luke Davey’s personal budget from £1,651 per week to £950 per week after the ILF closed in June 2015.

The primary focus of the appeal was in relation to Section 1(3)(d) of the Care Act, which states that in promoting an individual’s wellbeing a local authority must have regard to “the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances”.

Contradictions

In the judicial review it was highlighted that there were contradictions between the case records and the professional judgments set out in the witness statements, about the extent to which Luke Davey could spend time alone. The subsequent witness statements provided some clarity about the relationship between Luke Davey’s needs and how they would best be met, and at the judicial review the judge was able to conclude that there was some merit in the social worker’s contention that spending time alone would help Luke Davey in developing independence.

As part of the case in the Court of Appeal, Luke Davey’s legal representative challenged the validity of this aspect of the social worker’s witness statement as being “an afterthought not expressed in the contemporaneous documents”. This challenge was rejected and Lord Justice Bean stated that he agreed with the observations of Hallett LJ in R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234, paragraph 57:

One must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subject to overzealous textual analysis. Courts must be wary, in my view, of expecting so much of hard pressed social workers that we risk taking them away unnecessarily from their front line duties.”

This adds to what Justice Morris had stated in the High Court judgement. He responded to the submission on Luke Davey’s behalf that “further evidence … explaining the assessment and personal budget should not be admitted, where they contradict the contemporaneous record”, by stating: “Even where a needs assessment has been found to have been inadequate, there may be no point in exercising discretion to order relief, where due to subsequent explanations it is clear that re-assessment would lead to the same result and it is now fully and adequately explained.”

The Court of Appeal also made it clear that it would not rule on the criticism of Luke Davey’s legal representative that the view expressed by the social worker was irrational. The judge stated: “I am not an expert in the field, and I cannot possibly say that the view expressed by Ms Lovelock is irrational.” However, whether or not the social worker’s view was irrational was not considered significant by the Court of Appeal, as it had already made a determination on the issue in question, i.e. that there was no evidence that the existing team of personal assistants would break up.

Needs assessment

The original assessment took place shortly after the Care Act was implemented in April 2015, at a time when social workers were still adjusting to the new requirements. It was certainly the case that what was set out in the case records was not expressed in a needs-led way. It is possible that a judicial review might have been avoided if the original needs assessment was more in accordance with Care Act principles: i.e. setting out the activities and tasks that Luke Davey has difficulty with as a result of his physical impairment; determining the extent to which these have a significant impact on his wellbeing; and then developing a plan to reduce the impact, utilising his strengths and preventive services. An outline of how this could be achieved is included in my analysis of the judicial review published in March 2017.

Where social workers are able to apply the legislation in a legally literate way and are not hampered by poorly drafted local policies and procedures, disputes that result in judicial reviews will be unlikely in respect of their professional practice. However, it remains to be seen whether legal challenges will take place on the key issues of what constitutes significant impact on wellbeing and determining the sufficiency of a personal budget to meet needs.

Pete Feldon is an independent Care Act trainer and author of ‘The Social Worker’s Guide to the Care Act 2014’, published by Critical Publishing in May 2017 and the A-Z of the Care Act 2014 available on Community Care Inform Adults. You can hear Pete speak at Community Care Live London on 26 September onCarrying out legally literate reviews where there are pressures to make savings’.

8 Responses to Lessons for social workers from Luke Davey’s Care Act appeal

  1. Steve Pratt September 6, 2017 at 12:37 pm #

    Very interesting and encouraging that the courts take into account ‘hard pressed social workers’ and don’t expect them or their recordings to be perfect

  2. Planet Autism September 6, 2017 at 3:30 pm #

    According to the BBC article:

    “Mr Davey, who has quadriplegic cerebral palsy, argued it threatened his well-being and breached the Care Act.” and ” registered blind and uses a wheelchair, requires help with all of his personal care needs”

    “his mother Jasmine, 76, said: ‘We’re struggling. We’re having to rethink the whole way that Luke is having his care.”

    So does the social worker’s opinion that “spending time alone would help Luke Davey in developing independence.” override what the Mr Davey himself knows of his own needs? Since when did someone else know more about the person’s needs themselves? Spending time alone, he could be lonely which is emotionally harmful, he could feel (and literally be) helpless which could be both physically and emotionally harmful.

    So it’s OK for a wheelchair-bound blind man with extensive care needs to be abandoned some of the time because a social worker thinks that it will make him independent?

    So because a judge arbitrarily decides a social worker’s views are “genuinely held” (which he cannot know either way), the basis of this decision means that removal of some of his support is OK?!

    What a mockery.

    • Jay September 8, 2017 at 1:25 pm #

      Planet Autism,

      I don’t think anyone is suggesting that the Social Worker knows more about the wishes of the individual than the individual themselves. Social Workers will, of course, take into account the wishes of the individual, but they are not there to be dictated to. They need to utilise their professional judgment about what a person needs; consistency and fairness being provided by way of standardised eligibility criteria under the Care Act 2014.

      Most people, irrespective of whether or not they have a disability, spend time alone and have a need for personal space. I don’t think it’s fair to describe this man as being “abandoned”. Rather, a determination has been made that he does not require the amount of care he once did. Maybe his previous care package had nurtured a degree of dependence? Who knows… I am not privy to all the details of the case. Maybe his package was decreased gradually to help him to adjust? Again, I don’t know.

      However, what I do know is that the decision of a judge is never arbitrary, in fact, it is quite the contrary.

  3. Andy Storey September 6, 2017 at 3:54 pm #

    I applaud the comment by Lord Justice Bean in stating that he agreed with the observations of Hallett LJ in ‘not unnecessarily taking social workers away from their (essential) front line duties’.
    If only Local Authorities would take heed of this and find ways of cutting down on the plethora of paperwork that does just that,
    The public want contact not correspondence.

  4. Christine Stringer September 6, 2017 at 9:44 pm #

    In my humble opinion, Judges in these sorts of cases need training in Disability Awareness and the impact that a persons Disability has on them. Independent evidence should have been sought from a properly trained expert on the impact which Lukes disability had on him and his daily living. It may as well been a car mechanic making the decision. The Judge was not suitably qualified in disability issues and neither was the social worker by the sound of it, was she qualified in complex needs or an agency worker ?

  5. Colin Slasberg September 7, 2017 at 8:13 am #

    Pete’s advice to social workers is sound in terms of how to play their part successfully in the system we have. There is a long history of the judicial system tolerating that system. This is possible because, as successive judges have noted, they are not experts in the merits of assessments of need. All they require is evidence of some kind of a process having been followed that gives the appearance of decisions being based on need, not resources. But there is other advice to social workers. If they want their practice to satisfy not just the minimal standard required by the law, but also their own profession’s code of ethics, they must seek the necessary changes to the policy environment within which practice takes place.

  6. Jim Downey September 8, 2017 at 12:25 pm #

    Does not mean the judge got it right or that the social worker was right. Another judge may have ruled differently. Generally there are far too many social workers more willing to implement and not challenge their employer’s policies rather than put their code of ethics first. It has become tantamount to collusion with the employer’s lack of resources yet publicly trying to dress up cuts as needs led. I have seen this from both sides as I am both a practising senior social worker and the recipient of services on behalf of an autistic young adult. I feel our current social worker/case manager is one who always seeks to find ways of reducing our support in terms of direct payments rather than enhancing it. And previous case managers were little better be they nurse or social worker as I have never seen any of them at meetings actually disagree with their employer or manager, and the current one is more likely to actively support the managers at meetings. One wonders why some social workers came into or remain in the profession because they do not evidence any compassion or empathy, just seem to have become little more than paper processors who have been beaten down by their local authorities. They have forgotten that their primary duty is always to their clients not their employer! They have taken the heart out of their profession.

  7. Nanna Jules September 10, 2017 at 9:51 am #

    Whatever a social workers view they work within the law and this has a strict criteria when the care act is applied. That eligibility is applied nationally and should as much as possible be consistent within all local authorities.

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